FILED
NOT FOR PUBLICATION
NOV 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 16-30182
)
Plaintiff-Appellee, ) D.C. No. 1:15-cr-00139-SPW-1
)
v. ) MEMORANDUM*
)
NATHEN JEROME ADAMS, )
)
Defendant-Appellant. )
)
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted November 7, 2017**
Portland, Oregon
Before: FERNANDEZ, W. FLETCHER, and MELLOY,*** Circuit Judges.
Nathen Jerome Adams appeals his sentence for conspiracy to distribute
explosives without a license. See 18 U.S.C. § 844(a), (n); see also id. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Michael J. Melloy, United States Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
842(a)(3)(B). We vacate the sentence and remand.
Adams asserts that the district court committed procedural error1 when it
calculated his U.S. Sentencing Guidelines range by adding four levels to his base
offense level2 on the basis that he had “transferred [an] explosive material with
knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense.”3 We agree. When the district court
determined that Adams had transferred an explosive (a stick of dynamite) to
another person (an undercover agent for the Bureau of Alcohol, Tobacco, Firearms
and Explosives) with the requisite mental state at the time he made the transfer and
was paid therefor, it clearly erred4 because there was not sufficient evidence to
support that determination.5 There was evidence that after the dynamite had been
delivered to the buyer and paid for (that is, after the transfer itself had been
completed), the agent stated that he would use it for the felonious purpose of
1
See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
2
See USSG §2K1.3(b)(3). Unless otherwise indicated all references to the
United States Sentencing Guidelines are to the November 1, 2015, version thereof.
3
Id.
4
See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en
banc); United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010); see also United
States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).
5
See United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005).
2
blowing up another person’s car, and Adams replied: “That’ll do it.” However,
that exchange did not indicate that Adams knew or had reason to believe that the
dynamite would be used in that manner at the time the transfer was completed.
Nor did any other evidence suggest that he had that mental state.
Therefore, we VACATE the sentence and REMAND for resentencing.
3